The Biden administration is swinging the pendulum of repeated changes to water regulation back to expanding after those regulatory powers contracted under President Donald Trump.
But the swing isn’t likely to be permanent, legal scholars say.
The expansion of regulation has turned the question of federal jurisdiction over waters of the U.S., or WOTUS, from an arcane rule into a facet of America’s culture wars, given its impact on how private property is developed. Trump claimed—inaccurately, his critics said—that WOTUS “gave bureaucrats virtually unlimited authority” and “basically took your property away from you.”
Environmental litigators are urging the new administration to act fast.
“We want to it to be proper. I want them to follow science and develop a rule relatively quickly so we’re not left with a complete lack of protection,” said Janette Brimmer, an Earthjustice attorney who is litigating several WOTUS cases.
Political compromise is unlikely, however, until the Supreme Court or Congress can settle the issue once and for all, the observers say.
The pendulum is likely to continue swinging “indefinitely, unless one party establishes political dominance,” said Dave Owen, a professor at the University of California, Hastings College of Law.
Stopping the WOTUS pendulum from swinging might mean asking the courts to set aside expected Biden administration requests to stay pending litigation, and allowing the lawsuits to continue, said Anthony Francois, an attorney for the Pacific Legal Foundation.
The Biden administration is expected to ask courts to put WOTUS litigation on ice to give the Environmental Protection Agency and the Army Corps of Engineers time to decide if and how to rewrite the Trump administration 2020 rule lifting federal protections for many small waterways nationwide.
“Some 2020 cases should not be stayed—they should be litigated,” which could eventually allow the Supreme Court to clarify its ruling in Rapanos v. United States, Francois said.
In that case, the justices offered five different opinions over federal water jurisdiction, driving years of follow-up litigation about the definition of “waters of the U.S.” Congress didn’t clearly define those waters in the Clean Water Act, throwing that ball to the courts and regulators, who have made several attempts to define federal waters since the 1970s.
“The real question is, what does the statute mean? Right now, the Rapanos decision says it could mean damn near anything,” said Francois, who represents private property owners and cattlemen in WOTUS litigation.
Owen said he expects WOTUS litigation to continue because there are defendant-intervenors lined up in multiple cases who’ll carry the litigation forward even if the federal government switches sides and refuses to defend the Trump-era rule.
President Joe Biden set the WOTUS pendulum swinging again on Jan. 20. That day, he announced that the EPA and the Defense Department would review Trump’s narrow federal waters definition. Biden also signed a separate executive order revoking a 2017 Trump order calling for a review and reversal of the Obama rule.
The Trump rule, known as the Navigable Waters Protection Rule, or NWPR, lifted federal jurisdiction over some small streams and ditches—a rollback of the Obama administration’s 2015 expansion of water protections. The new rule prevents developers from needing a federal permit for work in those waterways.
The rule is in effect in every state except Colorado, where a judge blocked it. Both the Obama and Trump-era rules are being challenged in court.
However the Biden administration approaches WOTUS, the stakes are high for states grappling with how to regulate construction that could pollute surface water.
Development in previously protected steams are already underway in New Mexico, threatening watersheds in sensitive areas of the arid West, said Rebecca Roose, director of the New Mexico Environment Department’s Water Protection Division.
“The sooner NM can devote our limited resources fully to active surface water protection work, instead of costly challenges to bad federal rules, all New Mexicans will benefit from healthier rivers, streams, lakes and wetlands,” Roose said in an email.
Developers nationwide have been seeking Army Corps determinations for whether their proposed projects affect federal waters. In the first three months after the Trump rule was finalized in June, the Army Corps issued more than 1,000 determinations, more than 750 of which were determined to fall outside of federal jurisdiction.
By the end of the 2020, the Army Corps issued 4,589 determinations, and 569 so far in 2021, Army Corps spokesman Doug Garman said.
Garman said he was unable to immediately respond to a question about how many of those were for projects that fell outside federal jurisdiction.
Absent court action, the Biden administration’s options for reversing Trump’s WOTUS rollback would mean writing its own rule, which is likely to take years and leave many once-protected waters without federal oversight during that time.
The EPA declined to comment about its strategy and next steps. But the agency did say in a statement that it “will follow the science and law in accordance with the Biden administration’s executive orders and the Clean Water Act in reviewing the definition ‘waters of the United States’ to ensure that it protects public health and the environment.”
The biggest challenge for the Biden administration is revising the WOTUS definition in a way that increases protections for streams but passes muster before a conservative majority on the Supreme Court, Owen said.
“The court is primed to use this issue to trim federal authority,” Owen said.
It’s also possible the EPA and Army Corps will keep the Trump rule in place but expand it in order to meet the new administration’s environmental objectives, said Neal McAliley, an attorney with the Miami office of Carlton Fields P.A.
“There may not be as much of a rush to rescind the Trump rule,” he said.
Ultimately, it may take an act of Congress to resolve the issue and fill in the gap it left in the Clean Water Act—but political compromise doesn’t appear to be possible soon, he said.
“The whole definition of waters of the U.S. has entered the culture wars of America. People are not compromising on it,” McAliley said.
“There are some rules that are technical and arcane that take on this broader significance for people in the country, and this WOTUS rule is one of them.”
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